Opinion
56611/2016
01-16-2018
BRONX PRESERVATION, L.P., Petitioner, v. Erick RODRIGUEZ, Respondent.
Recitation, as required by CPLR § 2219(a), of the papers considered in the review of this motion. Papers Numbered:
Notice of Motion and Affidavit Annexed 2
Respondent's Memorandum of Law 3
Affirmation and Affidavits in Opposition 4
Affirmation in Reply 5
Upon the foregoing citing papers, the Decision and Order on this Motion are as follows:
In this "project based" section 8 tenancy respondent moves for summary judgment pursuant to CPLR § 3212 granting succession rights to the subject premises. Respondent contends that he is the biological son of the deceased tenant of record, that he lived with his mother from 2012 until her death on June 20, 2016 and these factors justify the Court granting accelerated judgment. Petitioner answers that respondent's presence in the subject premises was as a "live in aide" with an explicit understanding that tenancy rights will not be conveyed by this residence. For the reasons below, the motion is denied.
The operative question here is not whether the respondent had the requisite family relationship and duration of cohabitation with the tenant of record. Neither is the question whether the omission of respondent on the family composition is controlling. Rather, the issue is the effect of the agreement of the respondent to remain in the apartment as a "live in attendant".
"The general trend has been to analyze each "remaining family member's" succession claims on a case- by- case factual basis. " ... [N]o one factor is completely determinative with regard to whether a relative may succeed to the rights of a Section 8 tenant when that tenant permanently vacated" NSA North Flatbush Associates v. Mackie , 166 Misc 2d 446, 453 (Civ. Ct. Kings 1995). Respondent applied to petitioner for a tenancy in the subject premises. Petitioner rejected respondent's application due to a poor credit history/score. Analysis of and rejection based on a poor credit score is a permissible criterion for tenant selection under the HUD Handbook and federal law. Upon his rejection on the basis of his credit score/history, respondent applied for and accepted his occupancy as a "live in aide" for his mother. The status of "live in aide" has disadvantages including ineligibility for succession. By the knowing acceptance of the limitations for the "live in aide" status respondent cannot now reject the restriction after having accepted the benefit. Respondent's reliance on the standard analysis to determine that he is eligible for succession is misplaced. Unlike many other cases, the instant matter involves someone who made themselves known, went through the application process, was rejected for a reason that is within the relevant regulations and is now being asked to leave based upon the conditions upon which he entered the premises. Summary judgment cannot lie here.
The HUD Handbook covering Occupancy Requirements of Subsidized Multifamily Housing Programs (Handbook 4350.3) contains a Chapter entitled "Waiting List and Tenant Selection," which clarifies that this selection plan involves both confirming that an applicant family is eligible for a subsidy and screening applicants for suitability of tenancy. (Schwartz Decl. Ex. B. at 4–17–4–18.) The latter screening process "is a determination that an otherwise eligible household has the ability to pay rent on time and to meet the requirements of the lease." (Id. at 4–18.) The Manual explicitly notes that "[s]creening for credit history" is not only a permitted criteria but also "one of the most common screening activities," meant "to determine how well [*7] applicants meet their financial obligations" and "whether an applicant has the ability to pay rent on time." (Id. at 4–23.) In other words, "[o]wners may reject an applicant for a poor credit history." Coley v. Brook Sharp Realty LLC , 2015 US Dist LEXIS 137762 [SDNY Sep. 25, 2015].)
The Court notes that issues of the tenant composition on recertification are still to be resolved and that "sufficient, credible testimony at trial is needed to compensate for the lack of such formal, objective evidence." United Hay v. Grabrovak , (2002 NY Misc. LEXIS 405, 2002 NY Slip Op 50170U [App Term 1st Dep't 2002] ). (Alliance Hous. Assoc., LP v. Garcia , 53 Misc 3d 1215[A], 2016 NY Slip Op 51672[U], *9 [Civ Ct, Bronx County 2016].
The motion for summary judgment is denied. The matter is scheduled for a status conference February 6, 2018 at 9:30 am in Part E. This is the decision of the Court and copies will be mailed to the attorneys for the parties and made available in the Courtroom.